Considered
and decided by Peterson,
Presiding Judge; Halbrooks,
Judge; and Stoneburner,
Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Relator Bonnie M. Smith challenges the determination of a
senior unemployment review judge (SURJ) that relator was discharged for
misconduct and therefore disqualified from receiving unemployment
benefits. Because the record supports
the SURJ’s decision, we affirm.

FACTS

Relator was hired on June 16, 2003, as a senior production
assembler by Itron, a company that specializes in electronics manufacturing. Itron’s “zero-tolerance” policy against sexual
harassment is explicitly stated in the employee handbook:

It is the company’s policy to maintain
a work environment free from offensive or degrading comments or conduct. . . .
Employees have a right to be free from sexual harassment. Itron will not condone actions or words which
would be considered sexual harassment or coercive.

On December 15, 2003, relator signed
a form acknowledging that she attended harassment-sensitivity training,
understood the company’s policy on harassment, and had a responsibility not to
engage in behaviors that constituted harassment.

The following March, relator was
given a verbal disciplinary warning for “[b]ringing pornography into the
workplace and creating a harassing environment for others,” as a result of
viewing and passing on to another employee a novelty “camera” containing a
pornographic picture of men. The
employee to whom relator passed the item complained to the supervisor.

On June 14, 2004, another employee
lodged a sexual-harassment complaint against relator. Supervisors investigated the matter by
talking to coworkers, who verified that relator, during work time, used
inappropriate language and made sexual jokes and remarks that they found
offensive. In an interview with a
supervisor, relator admitted that she had told some sexual jokes to the
complaining coworker, but said she stopped when the coworker asked her to stop. The employer concluded that relator and the
male coworker who brought the complaint against her had mutually engaged in
inappropriate sexual banter. The
employer discharged relator and the complaining employee for violating the
company’s sexual-harassment policy.

Relator applied for unemployment
benefits and was initially determined to be disqualified from receiving
benefits because relator was discharged for employment misconduct. Relator appealed, and a ULJ reversed,
concluding that the discharge was for reasons other than employment misconduct
and that relator was entitled to benefits.
The employer appealed, and a SURJ reversed the ULJ, determining that relator
committed employment misconduct and was disqualified from receiving
benefits. This appeal by writ of
certiorari followed.

D
E C I S I O N

On appeal, this courtexamines the decision of
the SURJ rather than the decision of the ULJ.[1]Tuff v. Knitcraft Corp., 526 N.W.2d
50, 51 (Minn.
1995). In doing so, it views the
findings in the light most favorable to the decision and will not disturb them
when they are reasonably sustained by the evidence. Ress v. Abbott Nw. Hosp., Inc., 448
N.W.2d 519, 523 (Minn.
1989). This court defers to the ability
of the SURJ to weigh any conflicting evidence and
to make credibility determinations. See Whitehead v. Moonlight Nursing Care, Inc.,
529 N.W.2d 350, 352 (Minn.
App. 1995).

A person discharged from employment because of employment
misconduct is disqualified fromreceiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp.
2003).[2] Employment
misconduct is defined as “any intentional, negligent, or indifferent conduct,
on the job or off the job (1) that evinces a serious violation of the standards
of behavior the employer has the right to reasonably expect of the employee, or
(2) that demonstrates a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (Supp.
2003). But “[i]nefficiency,
inadvertence, simple unsatisfactory conduct, . . . [or] conduct an average
reasonable employee would have engaged in under the circumstances . . . [is]
not employment misconduct.” Id.

Relator argues that her termination was the
result of an angry coworker’s retaliation rather than the result of her
behavior. The SURJ based the
determination of disqualification on the fact that relator “continued to talk
about sexual matters in the workplace” even though she “had been warned for
sexual harassment and told she must refrain from any behaviors others may
consider harassing.” Relator’s
supervisors testified that coworkers verified that they consistently heard
relator telling offensive jokes and stories. One supervisor also testified that relator admitted
that she told some sexual jokes to a coworker after she had received the oral warning.
This testimony reasonably supports the SURJ’s finding that relator was discharged for employment
misconduct for sexual harassment, which disqualifies her from receiving
unemployment benefits.

Affirmed.

[1] The term “senior unemployment review judge” has
replaced “commissioner’s representative” for all SURJ decisions released after
August 1, 2004. See 2004 Minn.
Laws ch. 183, § 71.